Social mobility & diversity in the legal aid sector:

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Social mobility & diversity

in the legal aid sector:

One step forward, two steps back

Young Legal Aid Lawyers

October 2013

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www.younglegalaidlawyers.org [email protected] Twitter: @YLALawyers 2

ABOUT YLAL

Young Legal Aid Lawyers (YLAL) is a group of junior lawyers who are committed to practising in those areas of law, both criminal and civil, that have traditionally been publicly funded.

YLAL members include students, paralegals, trainee solicitors, pupil barristers and qualified junior lawyers based throughout England and Wales.

We believe that the provision of good quality publicly funded legal help is essential to protecting the interests of the vulnerable in society and upholding the rule of law.

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EXECUTIVE SUMMARY

Background &

context

1. Promoting social mobility and diversity in the legal aid sector has always been a central part of the work of the Young Legal Aid Lawyers (YLAL). We believe that the legal profession – like justice itself – should genuinely be open to all. 2. Our February 2010 report entitled “Legal aid lawyers: the lost generation in the “national crusade” on social mobility”1 found that:

“aspiring lawyers from diverse backgrounds are finding it harder than ever to forge a career in legal

aid… those from low-income families cannot afford to become legal aid lawyers and the legal aid profession is therefore becoming less and less representative of the

people it serves: those without means”.

There have been a number of developments since our first report was published including the Legal Education and Training Review (LETR), the decision of the Solicitors Regulation Authority (SRA) to end the trainee solicitor minimum salary and legal aid cuts brought in by the Legal

1_{“Legal aid lawyers: the lost generation in the}

“national crusade” on social mobility”, Young Legal Aid Lawyers, February 2010, p3

http://www.younglegalaidlawyers.org/sites/default/file s/YLAL_SOCIAL_MOBILITY_REPORT_FEB_2010_ 0.pdf

Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). All of these will impact to varying degrees on social mobility in the legal aid sector. With these changes in mind, the purpose of this follow-up report – based on a 2012 survey of around 10% of our membership – was to gauge where we are now. Three findings in particular emerged from the survey of our members, which form the basis of this report.

Findings

Finding one – high levels of

debt combined with low

salaries make legal aid work

unsustainable for those from a

lower socio-economic

background

3. Many members had spent thousands of pounds on their legal education and training, with a significant amount spent on the high (and ever-increasing) fees for the vocational courses: the Legal Practice Course (LPC) and the Bar Professional Training Course (BPTC). The level of debt attributed to education and training was substantial. Sixty five percent of respondents had (or estimated that they will eventually have) over £15,000 worth of debt as a result of their education and 15% had (or will have) over £35,000 worth of debt.

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4. Many members commented on how they were struggling with debt liabilities whilst surviving on a very low income from legal aid work. Of the respondents to our survey who were in legal work:

 5% were earning less than £10,000 per year (all were paralegals)

 8% were earning between

£10,001 and £15,000 (including 3 pupil barristers and 5 paralegals)

£15,001 and £20,000 (including 18 paralegals and 15 trainee solicitors)

 17% were earning between £20,001 and £25,000 (including 6 paralegals, 6 trainee solicitors and 4 solicitors)

 15% were earning between £25,001 and £30,000 (including 8 solicitors and 2 barristers)

£30,001 and £35,000 (including 7 solicitors and 1 barrister; none were paralegals or trainee solicitors)

 11% were earning more than £35,000 (4 were solicitors and 7 were barristers though not all were working in the legal aid sector) 5. The combination of prohibitively

expensive professional courses, high levels of debt and low salaries makes it extremely difficult for those from a lower socio-economic background to

enter the legal aid profession and then to sustain a career in the sector.

Finding two – unpaid work

experience represents a barrier

to social mobility

6. A clear trend to emerge from the survey data was the proliferation of unpaid work experience in the legal profession and in the legal aid sector in particular. 89% of respondents to our survey had done unpaid legal work experience. The barrier that unpaid work presents to social mobility is self-evident. Respondents commented that they struggled to afford unpaid work placements for a number of reasons including having adult or child dependants; a lack of contacts (family or friends) in London where many legal aid practices are based and where unpaid work placements are offered; and the small number of part-time work opportunities to top-up a legal aid income.

7. Whether an employer is under a legal obligation to pay someone the National Minimum Wage (NMW) will depend on whether they fall within the definition of a “worker”. Several recent Employment Tribunal cases have held that putative interns in the publishing and film industries were in fact workers. In view of this it seems likely that longer-term unpaid work placements in the legal sector may well be unlawful.

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Finding three – work

experience is a pre-requisite to

entry to the legal aid

profession

8. A significant majority of respondents (80%) indicated that work experience (both paid and unpaid) had helped further their career in legal aid. Reasons given for undertaking work experience predominantly split into two interlinked categories. Firstly, employers regard it as essential – respondents consistently cited their experience as a paralegal, volunteer, and so on, as having been critical to securing a training contract or pupillage. Secondly, the vocational courses (the LPC and BPTC) are not preparing candidates sufficiently for the realities of day-to-day practice. Seventy-one percent of respondents who had undertaken the LPC favoured replacement of the course with a form of work-based learning.

Conclusions &

recommendations

9. Based on these findings it is clear that the lack of social mobility within the legal aid sector remains a significant concern. Additionally, further cuts to legal aid raise the worrying possibility that a bad situation might become worse. With that in mind we make the following recommendations which we hope will go some way toward

rectifying the specific problems highlighted in the report:

i. The SRA should reinstate the minimum salary for trainee solicitors.

ii. Funds should be allocated to facilitate work experience placements in the legal aid sector. Placements should be well-structured to ensure that candidates benefit from their experience and are able to escape the “trap” of unpaid work. iii. Robust guidance should be

issued to the profession by the Law Society and the Bar Council on acceptable and lawful use of longer term unpaid work placements.

iv. Professional course fees should be regulated.

v. The professional bodies should consider replacing the current route to qualification with a form of work-based learning.

vi. Recruitment guidance dealing with the problems of unpaid work experience should be actively promoted by the legal profession.

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THE CONTEXT OF THE REPORT

10.This report has not been produced in a vacuum. Literature and initiatives relating to social mobility abound and policy changes, such as cuts to legal aid and the abolition of the minimum salary for trainee solicitors, have the potential to impact on the demographic of the profession. The purpose of this section is to provide a selected overview of some of this background, to provide context to this report and the recommendations contained within it.

Legal aid lawyers: the

lost generation in the

“national crusade” on

social mobility

11.YLAL’s first report on social mobility in the legal profession, “Legal aid lawyers: the lost generation in the “national crusade” on social mobility”, was published in February 2010 as a response to the Government consultation paper “New Opportunities: Fair Chances for the Future”2

and: “Unleashing Aspirations”3_{, a report}

published by the Panel on Fair Access to the Professions.

12.We concluded at that time that:

2_{“New Opportunities: Fair Chances for the Future”}

HM Government, January 2009 http://www.official-documents.gov.uk/document/cm75/7533/7533.pdf

3_{“Unleashing Aspirations” Panel on Fair Access to}

the Professions (a cross party panel chaired by the Rt. Hon Alan Milburn), July 2009

http://webarchive.nationalarchives.gov.uk/+/http:/www .cabinetoffice.gov.uk/media/227102/fair-access.pdf

“…aspiring lawyers from diverse backgrounds are finding it harder than ever to forge a career in legal

aid. The Government’s “national crusade” to improve social mobility does not appear to have extended to

this sector of the legal profession. The reasons why social mobility is particularly lacking in the legal aid sector include the lack of subsidised

training opportunities, low salaries, and the almost ubiquitous requirement for entry-level candidates to have copious work

experience in legal aid, which inevitably can normally only be obtained on an unpaid basis. The result is that those from low-income

families cannot afford to become legal aid lawyers and the legal aid

profession is therefore becoming less and less representative of the

people it serves: those without means.” 4

13.Interviews were undertaken with students, practitioners and academics from diverse backgrounds and it was found that social mobility was lacking in the legal aid sector for the following reasons:

 The lack of subsidised training opportunities;

 Low salaries; and

 The requirement for entry-level candidates to have copious amounts

4_{“Legal aid lawyers: the lost generation in the}

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of work experience in legal aid, which is generally obtained on an unpaid basis.

14.Against that backdrop we welcomed the Government’s proposals for the improvement of social mobility, but felt that more should be done in order to promote it, particularly within the legal aid sector.

Fair access to

professional careers

15.The coalition Government’s Independent Reviewer on Social Mobility and Child Poverty, Alan Milburn, followed up his 2009 “Unleashing Aspirations,” report with “Fair Access to Professional Careers,”5

published in May 2012. The report focuses on the professions, in particular the legal sector, medicine and journalism. The key question posed by the report was “whether growth in professional employment is producing a social mobility dividend for [the United Kingdom]”6_{. The conclusion was “not}

yet.” The report highlighted that within the legal profession generally, efforts are being made to address fair access and social mobility and that the legal sector is at the forefront of driving activity aimed at changing access to professional jobs. However, progress was described as being “too slow” and the report went on to conclude that “a

5_{“Fair Access to Professional Careers”, Rt. Hon Alan}

Milburn, Independent Reviewer on Social Mobility and Child Poverty, May 2012

https://www.gov.uk/government/uploads/system/uplo ads/attachment_data/file/61090/IR_FairAccess_acc2. pdf

6

Ibid. p1, para 5.

lot more...needs to be done.” There was no specific mention of the legal aid sector.

The cost of legal

education & training

16.It is well known that the cost of qualifying as a solicitor or barrister via the traditional route of a qualifying law degree, a professional post-graduate academic course, and the final training placement is very expensive. Universities can now charge up to £9,000 each year for tuition fees7. If a graduate wishes to convert their non-law degree by undertaking the Graduate Diploma in Law they will have to pay between £7,700 and £9,820 for the privilege.

17.In addition, fees charged by the private education institutions for the post-graduate vocational courses (the LPC and BPTC) are extremely high and the tendency has been for fees to rise year on year. A table of course fees for 2013-14 is set out on the following page:

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http://www.parliament.uk/briefing-papers/SN00917.pdf

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GRADUATE DIPLOMA IN LAW (GDL) – 2013/20148

University of Law, Manchester £7,700

BPP, Manchester £7,750

University of Law, Birmingham £7,700

BPP, Birmingham £7,850

BPP, London £9,700

University of Law, London £9,820

Kaplan Law School, London £9,700

LEGAL PRACTICE COURSE (LPC) – 2013/20149

(including £120 SRA registration fee)

University of Law, Manchester £11,380

BPP, Birmingham £11,076

BPP, London £14,076

BAR PROFESSIONAL TRAINING COURSE (BPTC) – 2013/201410

(including £400 BSB registration fee)

BPP, London £17,350

18.The total cost of legal education and training is therefore a very high burden. For instance, a student studying law at undergraduate level followed by the BPTC in London can now expect to pay in the region of £44,000 for course fees alone.

8

See http://www.law.ac.uk/prospective-students/gdl-course-fees.html for the University of Law,

http://www.bpp.com/postgraduate-course-details/d/postgraduate/GDL/145 for BPP and http://law-school.kaplan.co.uk/law-courses/gdl for Kaplan.

9

See http://www.law.ac.uk/prospective-students/lpc-course-fees.html for the University of Law,

http://www.bpp.com/postgraduate-course-details/d/postgraduate/LPC/146 for BPP and http://law-school.kaplan.co.uk/law-courses/lpc for Kaplan

10

See http://www.law.ac.uk/Our-Courses/BPTC/BPTC-course-fees/ for the University of Law

http://www.bpp.com/postgraduate-course-details/d/postgraduate/BPTC/144 for BPP and http://law-school.kaplan.co.uk/law-courses/bptc-bvc for Kaplan

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The end of the

minimum salary for

trainee solicitors

19.On 16 May 2012 the SRA board decided to “scrap” the trainee solicitor minimum salary. The board stated that setting a minimum salary level for trainees above the National Minimum Wage (NMW) rate for employees was not in the public interest.

20.At present, the minimum salary rate for central London is set at £18,590 p.a. and the rate recommended by the Law Society is £19,040 p.a. Elsewhere in England and Wales, the minimum rate is £16,650 p.a. and the recommended is £16,940 p.a. The new SRA policy will come into effect on 1 August 2014, from which point the only requirement for employers in terms of trainee salaries will be to pay trainees at least the main rate for employees under the NMW Regulations11, which is £6.31 per hour from 1 October 2013 for those aged 21 years and over.

21.The data within the SRA’s ‘Economic and Equality Impact Assessment’ on the removal of the minimum salary for trainees12 indicated that the impact of the change in salary levels resulting from removing salary restrictions would disproportionately affect Black and Minority Ethnic (BAME) groups,

11

http://www.sra.org.uk/sra/news/trainee-minimum-salary-levels-for-2011-2014.page

12_{“Review of Trainee Minimum Salary: Economic}

and Equality Impact Assessment”, Solicitors Regulation Authority, April 2012

http://www.sra.org.uk/sra/news/trainee-minimum-salary-levels-for-2011-2014.page#l1

women, people working outside of London and those who attended state schools.

22.In our response13 to the SRA’s consultation on the proposed change we argued that the minimum salary provides an important safeguard that protects against exploitation, helps to ensure equality of opportunity and contributes to social mobility and diversity within the legal profession. We noted that it was surprising and disappointing that the SRA – a body charged with encouraging an independent, strong, diverse and effective legal profession and promoting the public interest – would even contemplate such a course of action. We also noted that there would likely be a knock-on effect on clients since removal or severe reduction of the minimum salary could see an overall decrease in the number of people entering or drawn to legal aid work. A drop in the number of solicitors willing to work in these crucial areas of law for the very poorest in society would be detrimental to the public interest.

Pupillage awards

23.The Bar Standards Board (BSB) imposes a requirement on chambers to pay their pupils a minimum of £1,000 each month of the pupillage (i.e. £12,000 each year). Many chambers reliant on legal aid work pay only this minimum to their pupils. Chambers can employ pupils without any grant or funding or pay, but they must apply to

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the BSB for an exemption to the usual rules. We are aware of at least one chambers that has been granted a waiver by the BSB from having to pay the minimum award over the last six months14.

The Legal Education

& Training Review

24.The Legal Education & Training Review15 (LETR) was jointly conducted by the SRA, the BSB and the Institute of Legal Executives Professional Standards. The remit of the LETR was broad; encompassing the qualifying law degree, the vocational courses (the BPTC and LPC), pupillage, training contracts and continuing professional development. It provided an opportunity for interested groups and individuals to identify those aspects of legal training which work and those which do not. 25.YLAL submitted a response to the

review consultation in September 2012. This response (using the same data upon which this report is based) raised the following concerns:

 The prohibitive cost of the LPC and the BPTC;

 The difficulties with unpaid work experience;

 The value of "work-based learning" as an alternative route to qualification; and

 The need for more and better targeted scholarships. 14 http://www.legalcheek.com/2013/07/unfunded-pupillages-are-back-2/ 15 See http://letr.org.uk/

26.The conclusions of the LETR were published in June 201316. The LETR made a number of recommendations to the relevant professional bodies which related to social mobility17. These included:

Recommendation 12 – The structure of

the LPC … should be modified with a view to increasing flexibility of delivery and the development of specialist pathways.

Recommendation 20 – In light of the

Milburn Reports on social mobility, conduct standards and guidance governing the offering and conduct of internships and work placements should be put in place.

Recommendation 21 – Work should

proceed to develop higher apprenticeship qualifications as part of an additional non-graduate pathway into the regulated professions, but the quality and diversity effects of such pathways should be monitored.

Recommendation 22 – Within regulated

entities, there is no clearly established need to move to individual regulation of paralegals. Regulated entities must however ensure that policies and procedures are in place to deliver adequate levels of supervision and training of paralegal staff, and regulators must ensure that robust audit mechanisms provide assurance

16_{“Setting standards; the future of legal services}

education and training regulation in England and Wales” LETR, June 2013 http://www.letr.org.uk/wp-content/uploads/LETR-Report.pdf

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www.younglegalaidlawyers.org [email protected] Twitter: @YLALawyers

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that these standards are being met. To ensure consistency and enhance opportunities for career progression and mobility within paralegal work, the development of a single voluntary system of certification/licensing for paralegal staff should also be considered, based on a common set of paralegal outcomes and standards.

Recommendation 23 – Consideration

should be given by the Legal Services Board and representative bodies to the role of voluntary quality schemes in assuring the standards of independent paralegal providers outside the existing scheme of regulation. The Legal Services Board may wish to consider this issue as part of its work on the reservation and regulation of general legal advice.

Recommendation 24 – Providers of

legal education (including private providers) should be required to publish diversity data for their professional or vocational courses, Qualifying Law Degrees and Graduate Diplomas in Law and their equivalents.

27.In response to the LETR recommendations the SRA has announced a “radical programme of reform”18_{. Likewise the BSB has}

responded by publishing a framework for the development of its future approach to education and training19.

18_{“Responding to the Legal Education and Training}

Review”,Anthony Townsend (Chief Executive), 8 October 2013

http://www.sra.org.uk/sra/news/events/speeches/ant ony-townsend-legal-policy.page

19_{“Education and strategy framework” Bar}

Standards Board

https://www.barstandardsboard.org.uk/regulatory-Both programmes of reform are in the early stages and the detail of what is to change and when, is not yet known.

Legal aid cuts 1: The

Legal Aid Sentencing

and Punishment of

Offenders Act 2012

28.The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) came into force on 1 April 2013 and brought significant changes to the civil legal aid system. LASPO removed a large number of areas of law from the scope of legal aid. These areas included immigration (save for asylum claims or work carried out for those in immigration detention); employment (except where there is a discrimination claim); education (except for Special Educational Needs work); welfare benefits (except for appeals to the Upper Tribunal and onwards); debt; clinical negligence for the majority of adults and children; and personal injury.

29.Six months after the changes came in we are beginning to see the impact of these changes on clients who are no longer able to access legal advice and representation. But the reduction in scope has also affected the financial viability of chambers and firms whose clients tend to rely on legal aid. Many are now reviewing their business plans and in some cases limiting the training and qualification opportunities offered

requirements/changes-to-regulation/legal-education-and-training-review/education-strategy-framework/

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to junior lawyers. In addition the reduction in income is likely to result in an increased reliance on lower-paid, junior, practitioners.

Legal aid cuts 2:

Transforming Legal

Aid

30.More recently, the Government has proposed further legal aid cuts20. Included in the proposals are plans to reduce the fees paid in criminal, family, immigration and civil cases to varying degrees. Again, it seems likely that these fee reductions will impact on social mobility and diversity in the profession. The Bar Council observed in their response to Transforming Legal Aid21 (in relation to the proposed civil reforms) that:

“…the Equalities Impact Assessment recognises that those members of the Bar who will be affected by this proposal

are more likely to be “female or BAME and younger barristers”. The Bar has worked hard in recent

years to improve access to the profession and ensure it is more

representative of the society we

20_{“Transforming Legal Aid: Delivering a more}

credible and efficient system”Ministry of Justice, April 2013; “Transforming Legal Aid: Next Steps” Ministry of Justice, September 2013; and “Judicial Review Proposals for Further Reform” Ministry of Justice, September 2013

21 _{“Bar Council response to the Transforming Legal}

Aid: delivering a more credible and efficient system consultation”, the General Council of the Bar of England and Wales, June 2013

http://www.barcouncil.org.uk/media/213901/the_bar_ council_response_to_moj_transforming_legal_aid_c onsultation_040613.pdf p21, para 92

serve. This proposal would particularly affect those groups we have worked hard to attract” 22

31.The BSB made similar comments in their response to the criminal aspects of the consultation:

“With the increase in University fees and the cost of the BPTC it is

inevitable that many potential advocates who may have been well suited to practising publicly funded criminal law will not seek to do so given the question over whether they would be able to

sustain themselves as practitioners on the fees to be

earned. At particular risk are persons from socially diverse

backgrounds and those with families to support or other caring

responsibilities...it creates a risk that only those who are financially

better off will be able to afford to enter or remain in this area of work and hence a barrier to entry

by those who are socially disadvantaged.” 23

32.The Law Society also raised a particular concern in their response about the effect of the criminal cuts on BAME practitioners:

“Data shows that black and minority ethnic solicitors practice

22

Ibid p135-136, para 23

23_{“Transforming legal aid: delivering a more credible}

and efficient system - Response of the Bar

Standards Board”, Bar Standards Board, June 2013

https://www.barstandardsboard.org.uk/media/15099

96/transforming_legal_aid_-_delivering_a_more_credible_and_efficient_system_ -_response_of_the_bar_standards_board.pdf p6 , para 28.

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14 disproportionately in small firms,

and that therefore any proposal that impacts adversely on small firms will have a disproportionate

adverse impact on BAME solicitors. It is quite clear that although under these proposals, a

small firm may be able to survive as a member of a consortium or

as a subcontractor, such firms will be in a weaker position… The proposals will therefore inevitably

weaken the position of BAME practitioners within the

profession.” 24

Bar Council Fair

Recruitment Guide

33.The Bar Council has compiled a Guide aimed at promoting fairness and best practice in recruitment and selection at the bar, the “Fair Recruitment Guide 2012: A best practice guide for the Bar”25

. This Guide covers all elements of the recruitment process, from drafting selection criteria to making offers to candidates. The Guide is predicated on four principles of fair and effective selection: reliability, validity, objectivity and transparency. The intention is that a focus on these aspects will enable socially disadvantaged candidates to be

24 _{“’Transforming legal aid: delivering a more credible}

and efficient system’ – MOJ consultation paper - Law Society response to chapters 4 and 5: ‘Introducing competition in the criminal legal aid market’ and ‘Reforming fees in criminal legal aid’”, The Law Society, June 2013 http://www.lawsociety.org.uk/representation/policy- discussion/transforming-legal-aid-consultation-law-society-response/ p24, para 6.1. 25 http://www.barcouncil.org.uk/media/165213/recruitm ent_guidev22_18sept_merged_readonly.pdf

assessed meritoriously and holistically, without excessive significance placed on, for example, a candidate's ability to undertake unpaid work experience. 34.We are not aware of the Law Society

producing similar guidance for the recruitment of trainee solicitors.

Conclusion

35.It is against this backdrop of on-going investigations into social mobility by the Government, possible future changes to the education and training system by the regulators, and cuts to legal aid, that junior lawyers and students face the task of establishing a career as a legal aid lawyer.

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FINDINGS

Finding 1: High levels of debt combined with low

salaries make legal aid work unsustainable for

those from lower socio-economic backgrounds

36.The first finding to emerge from our data was that those entering legal aid often have extremely high levels of debt from their studies. This leaves many in unsustainable financial situations when they start work in low-paid legal aid jobs.

Coping with high course fees -

family background and debt

37.As set out in the context chapter above, the cost of qualifying as a solicitor or barrister via the traditional route of a qualifying law degree, a professional post-graduate vocational course (LPC or BPTC (previously the Bar Vocational Course (BVC)), and the final training placement (training contract or pupillage) is very expensive. Universities can now charge up to £9,000 each year for tuition fees and the GDL can cost between £7,700-£9,820. However, it is the vocational courses that represent the highest level of fees that students must undertake. Of the respondents to our survey:

 The majority (56%) of those who studied the LPC paid fees of between £9,000 and £12,000

 The majority of those who studied the BPTC/BVC paid over £9,000 in course fees, with 28% paying between £9,000 and £12,000, and 35% paying over £15,000.

38.This is a problem which is only getting worse, as the cost of these courses continues to rise year on year.

39.A number of respondents to our survey felt that the cost of law school in itself represents a significant barrier to social mobility. When asked how university tuition fees and law school fees were paid respondents confirmed that they had relied on a number of different sources for help:

 Over half said that they relied on financial support from family;

 A third relied on loans;  Almost a third had used

personal savings; and  14% relied on part-time

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40.Given these figures it is clear that for many, training to become a legal aid lawyer is simply not an option unless you come from a background where financial support is readily available. One respondent, when asked to identify barriers to social mobility that he or she had faced answered:

“Huge financial barriers: I have lived a very frugal life in an attempt to fund my legal training, have taken extra jobs, borrowed money from my

parents, decimated my savings, and all this coming from a middle-class

background.”

41.For those without familial support, or with insufficient help to cover the full cost of law school, taking out a loan is often the only way to finance their way through their education. The result is that many start their working life with high levels of debt. As one respondent stated:

“So much debt is accumulated on completing the education that we are not able to afford to live or pay

the debt back.”

42.Such high levels of debt were a prevalent theme to emerge from the survey and it is clear that many individuals are starting work with significant financial liabilities. Sixty six percent of respondents had (or estimated that they will eventually have) over £15,000 worth of debt as a result of their education and 15% had (or will have) over £35,000 worth of debt. Although not exclusively, this debt included student loans from graduate

degrees, law school fees and the costs of living whilst studying.

Low salaries

43.The debt burden of entrants to the profession needs to be considered in the context of the earnings of junior legal aid lawyers. Many responses to our survey focused on the issue of low pay set against high levels of debt:

“A legal aid salary in my experience is unpredictable, unreliable and low”

“High debts from studies ... are very difficult to pay from legal aid

wages.”

“I will have a high level of debt, a young family and no significant increase in my income with which to

pay the debt off.”

“Even the trainee minimum barely allows for us to meet basic living expenses whilst paying back course

fees.”

44.Low pay pervades all levels of the junior end of the profession. Many need to undertake unpaid experience as a stepping stone to paid employment (see Finding 2), while others spend years working in low-paid paralegal jobs before being taken on as a trainee or securing pupillage.

“There are very few trainee jobs, and it is often a requirement to be a paralegal first. This means people can spend a year or more at a law firm hoping it turns into a training contract without any job security.

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Then if [you] do not get one [you] have to start as a paralegal again

somewhere else, also with no security. This would be extremely difficult with dependents, especially

with the ridiculously low paralegal wages in some firms.”

45.The need to undertake low-paid paralegal work prior to securing a training contract or pupillage was a common theme among respondents:

 61% of respondents have worked or were working as a paralegal at the time of the survey

46.Even once in formal training, trainee salaries (for trainee solicitors) and pupillage awards (for trainee barristers) are often set at an extremely low level.

“Now, as a pupil, my principal worry is not getting paid. Criminal solicitors’ firms who instruct chambers rarely pay for the work which pupils do. This is just about

sustainable while I still receive a pupillage grant of £1,000 a month. When this grant terminates, unless the situation changes, it is difficult

to see how I will be able to continue.”

47.Wages in the legal aid sector remain low in comparison both to other areas of the law and other professions. The majority of respondents to our survey earned less than £20,000 each year. A more detailed analysis is set out below.

48.Of the respondents to our survey who were in legal work:

 5% were earning less than £10,000 per year (all were paralegals)

 8% were earning between £10,001 and £15,000

(including 3 pupil barristers, 5 paralegals)

(including 18 paralegals, 15 trainee solicitors)

(including 6 paralegals, 6 trainee solicitors, 4 solicitors)

(including 8 solicitors, 2 barristers)

(including 7 solicitors and 1 barrister; there were no paralegals or trainee solicitors)

 11% were earning more than £35,000 (4 were solicitors and 7 were

barristers though not all were working in the legal aid sector)

49.As well as inhibiting less well-off individuals from entering the profession

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in the first place, high debts and low salaries can have the effect that individuals may be unable to continue to work in the legal aid sector.

“I often feel like leaving. There are days when I cannot even get to my place of work because I don't have enough money to get there. I earn hardly anything and I am told that eventually I will. My quality of life is

awful.”

50.Indeed, several respondents indicated that they had already been forced to move away from legal aid work to an area where the financial difficulties are less pronounced because of these problems.

“...No bank now lends enough to pay for tuition and cost of living for

these two courses, so it is impossible to do unless you go for a

“I have actually had to leave the legal aid sector all together at the moment due to a training contact being offered at a private firm... I have two young children and cannot

afford to live on a paralegal wage forever.”

51.The trend underpinning these responses was clear. The combination of prohibitively expensive professional courses, high levels of debt and low starting salaries represents a significant barrier to social mobility within the profession.

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Finding 2: Unpaid work experience represents a

significant barrier to social mobility

52.A clear trend to emerge from the survey data was the proliferation of unpaid work experience in the legal profession.

 89% of respondents to our survey had done unpaid legal work experience;

 Only 40% of respondents had done any paid work

experience; and

 42% had undertaken work experience that was

expenses-only.

53.The nature and length of these unpaid work placements varied. Typical unpaid placements included internships at charities and Non-Governmental Organisations (NGOs), paralegal positions at law firms and volunteering at legal advice centres. A number of these placements only required a short-term commitment, for example, a one-week mini-pupillage at barristers’ chambers, or a limited ongoing commitment of say, one day a week volunteering at a Law Centre.

54.These might be regarded as the “acceptable” end of the spectrum. However, a proportion of respondents had undertaken significantly more substantial unpaid work placements. For instance, several respondents had undertaken full-time unpaid placements lasting between four and eight months,

while others had committed to part-time placements in excess of a year. Some respondents indicated that the unpaid work placements they had undertaken such as, volunteering for legal charities did not even cover travel expenses meaning that it cost them money to undertake the placement.

Unaffordable

55.The barrier that unpaid work presents to social mobility is self-evident. Those from lower income backgrounds simply cannot afford to work for free as a stepping-stone to qualification. This was a recurrent theme to emerge in the responses to the survey, with a number of respondents highlighting the difficulties of trying to support children at the same time:

“Pupillages are won and lost on unpaid internships and placements. As the full time mother to a toddler, I

cannot viably take up the opportunities I'd like to in order to

set my CV apart.”

“…graduates are expected to work for 6 months with the 'promise' of a paid position at a later date. This is extremely unfair on graduates who for example have dependants or

those who do not have working parents to rely on for financial

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20 “I found it really hard to find work

experience and during my studies I couldn't afford to work for free. In

the end I had to, when it became painfully obvious there was no other

way I would get a job without experience.”

“I cannot afford to work for free; this limits the type and amount of work

experience I am able to obtain.” “As an adult with bills to pay, it is

very difficult to work for free.” “I'd like a training contract with a legal aid firm but need it to be part

time and ideally flexible, given my commitments as a parent with two young children. I also can't afford to

work for free.”

Difficult to fit around paid work

56.Those unable to afford to undertake unpaid work were left with limited options. A number of respondents observed that they had tried to combine unpaid legal work with paid non-legal work, but had found this difficult:

“For those who are working, often more than one job, and studying, there is a lack of opportunities to gain experience at weekends. Many

struggle to obtain the experience needed to obtain paid paralegal

posts.”

“I found it very difficult whilst working full time to get the required work experience needed to apply for

paralegal posts.”

“Prior to pupillage, I struggled to accrue legal experience. Working for

free was not an option and any experience needed to be fitted around paid work and studies. This

limited me to volunteering for one day a week making it difficult to build up my experience and my CV.” “[I] cannot afford to work for free, [I] have dependents and [a] mortgage

to pay, [with] three jobs to work.” “[It is] very hard to afford unpaid work experience and to fit it around

unrelated paid work.”

Geographical barriers

57.Geographical issues were also highlighted as a barrier to obtaining work experience. Many opportunities are in London and for those without family in the city, this adds significantly to the cost, particularly where the placements do not reimburse travel expenses:

“The cost of completing mini-pupillages was a huge barrier: they

are a prerequisite to pupillage but are limited by geography. To complete mini-pupillages in the Northwest I had to borrow money

from my parents to commute to Liverpool, Manchester and Birmingham, and rely on their generosity in letting me stay at home rent-free during the holidays.

As the more specialised chambers are based in London, I knew it would

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mini-pupillages there. However, with no family in London or friends able to host me for the three weeks, I had

to draw on my overdraft to cover rent and transport…The mini-pupillage process is so London centric. I feel students outside of London are at a real disadvantage in

gaining experience, and those with family in London often do not realise

how lucky they are.”

“Unpaid or expenses only internships [are] often a long way

away from where my

accommodation is, forcing me to rely on staying with friends / family.”

58.It is trite to observe that requiring individuals to work for free represents a barrier to those from low-income backgrounds. To establish that such a large proportion of our membership have been required to do exactly that is a trend we find concerning.

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Finding 3: Work experience is an essential

prerequisite to finding a job in the legal aid

sector

59.The trends observed in finding two, are question begging. Given the problems presented by unpaid work placements, why are individuals doing it? Is it really necessary? To try and answer this we asked respondents to comment on what impact, if any, previous work experience had played in their careers.

 A significant majority of respondents (80%) indicated that work experience had helped further their career in legal aid.

60.It should be noted that of this majority, a number of respondents highlighted the positive aspects of legal work experience in helping them make career decisions, developing their skills and knowledge and giving them a feel for professional working environments.

“It has provided me with some valuable legal experience both practical and academic and has helped me to shape my views about the kind of firms I want to work with, the kind of law I want to practice and

has also given me a valuable understanding of the challenges facing firms including the current changes to the legal aid system…”

61.Other respondents were less positive about the experience.

“...as a trainee you would be learning all of this anyway. Some may say it is a way of giving lower

wages for a prolonged period to a person keen on joining the

profession.”

62.Reasons given for undertaking work experience predominantly split into two interlinked categories. Firstly, employers regard it as essential. Secondly, the vocational courses (the LPC and BPTC) are not preparing candidates sufficiently for the realities of day-to-day practice.

Employers require work

experience

63.Respondents consistently cited their experience as a paralegal, volunteer, and so on, as having been critical in securing a training contract or pupillage. They noted that at interviews recruiters were much more interested in the skills candidates had picked up in the course of their employment rather than through education.

“I think it was the main thing that attracted my employers to me. My

experience was the focus of questions in my training contract interviews, both experience I had done and projected experience and

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undertaking. Partners have subsequently told me that they look

for ability and commitment in the people they take on and this is best

demonstrated by experience.” “... employers expect it and your

application doesn't look serious without it”

“It is useful experience in terms of exposing you to more areas of law and how to deal with clients. But more than that, it is the case that without this experience chambers

would not give my application a second look.”

64.Some respondents felt the significance of this requirement was not appreciated by prospective employers:

“It was raised in my Training Contract interview that all my experience had been in commercial firms in a different geographic area. I argued that most legal aid firms (this one included) were not in a position

to offer [paid] work experience.”

Barristers also noted that some chambers require work experience as part of “points allocation” when going through applications.

Work experience is necessary

to prepare individuals for

practice

65.The second of the two factors underpinning the need to undertake work experience was that it was essential to prepare candidates for practice:

“I now possess a better appreciation of the business aspect of a legal aid

firm, including billing, LGFS/AGFS, upper and lower limits, fixed fees etc. Without practical experience, I

would be walking into a training contract completely blind and unappreciative of my worth as an

individual to my firm for new business and profit.”

“Although pay was ridiculously low (£7,500 pa in 2000-01) this experience gave invaluable insight into work in practice. [I] learned far more about legal practice in this

year than I did on the LPC.” “I do not think I would have secured

pupillage without the skills and experience which I picked up

working as a paralegal - e.g. drafting, knowledge of public law

litigation, ability to deal with vulnerable clients, knowledge of niche areas of law (e.g. prison law

and community care), ability to negotiate/deal with Defendant Local

Authorities and judgment. All of these are essential elements of

every day practice but are not aspects which can be picked up to a

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24 sufficient standard, if at all, on the

BPTC”.

66.Inherent in this was a feeling among respondents that the vocational stages of training were not sufficiently relevant to day-to-day practice in legal aid:

 80% of respondents who had undertaken the BVC/BPTC only found some parts

relevant to their employment.  82% of respondents who had

undertaken the LPC only found some parts relevant to their employment; 13% found none of it relevant at all.

67.Specifically, respondents tended to the view that the professional courses were not sufficiently practical and (in respect of the LPC) were too focussed on business and commercial law to provide a basis for work in the legal aid sector.

“Even at the time, very little of the LPC was useful or relevant… I think

learning practical skills whilst working would be much more useful, even if it still involved some

combined college time. Practical things, like the Civil Procedure Rules, only have real meaning when

you have to use them.”

“Business/company law [on the LPC is] completely irrelevant.” “I am working in mental health, which didn’t even get a mention.”

“[The] LPC is particularly geared towards corporate work and so I felt

the vast majority of the compulsory modules were not relevant to me as someone who wanted to practice in

legal aid”

“The civil litigation module [was] the most relevant. Although… taught in the abstract it was less useful than if

it had been combined with the workplace.”

A vicious circle?

68.It should be noted at this point that neither of the factors highlighted above – neither the demand for work experience from employers nor the need to gain practical experience to prepare oneself for practice – necessarily require individuals to undertake unpaid work experience. Clearly, paid work experience would also provide a solution to these problems. However, the experience of respondents to the survey indicates that often unpaid experience is the only way to get a “foot in the door” to obtain paid experience.

“Unpaid work experience [is] vital to getting paid legal work.”

One can only get work experience, it seems, if one already has work experience. This is a cycle that is difficult to break unless one is willing and able to work for free.

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Work-based learning: an

alternative?

69.One possible alternative, which might break this cycle, would be to replace the vocational stages of training with a form of “on-the-job” or work-based learning. Hitherto this option has only been considered in respect of the LPC. A majority of respondents were in favour of this course of action:

 71% of respondents who had undertaken the LPC favoured replacement of the course with work-based learning

70.Respondents observed that:

“After endless studying people find themselves in office environments

and cannot cope. It is utterly artificial to conceive of law as an academic subject. People need the skills to get on with the job and cope

in the environment they will eventually enter into.”

“There should be a wider diversity of entry routes into the profession,

with less ability for firms and existing members of the profession

to prevent new entrants from progressing.”

“This would give students the chance to learn practical skills on

the job whilst making some money rather than paying a lot to learn

practical skills in a theoretical environment. From what I have heard, the LPC is not like practice

anyway, so there is no point in paying so much for skills that can't

be taught in the classroom.”

Taking stock

71.Pausing to take stock, the theme explored in finding two was that unpaid work experience is prevalent and for many respondents it is simply unaffordable, representing a significant barrier to the legal profession. The theme explored in this third finding is that this work experience is felt to be an essential prerequisite to entry into the profession either because employers require it or because it provides the necessary foundation to succeed in day-to-day practice. While work experience does not need to be unpaid to meet these requirements, the reality is that candidates are unlikely to secure a paid position unless they already have work experience on their CV. Unpaid work may therefore be the only opportunity to get a “foot in the door”. A body of respondents felt that work-based learning may provide a solution to this problem.

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THE LEGAL FRAMEWORK

72.One of the key themes to emerge from the findings above was the prevalence of unpaid work placements. The length and nature of these placements varied. Some respondents reported working for a few hours or a day each week at a legal charity. Others reported working unpaid full-time, for periods in excess of six months as a “paralegal” or “legal intern”. At the former end of the spectrum the practices are not a particular concern. Many charities and Not-for-Profit organisations (NfPs) in particular rely on a base of dedicated volunteers. And it is entirely right that committed individuals should be able to dedicate their time and accrue experience with these organisations if they choose. However, at the other end of the spectrum, the longer, more intense placements have the feel of exploitation about them. With this in mind it is useful to consider the legal framework governing paid and unpaid work.

I know my rights…

73.Under s1 of the National Minimum Wage Act 1998 a “worker” is entitled to be paid the National Minimum Wage (NMW). The point of departure then is to consider whether or not the individual is a worker. The term “worker” in this context is defined by s54(3) National Minimum Wage Act 1998:

(3) In this Act “worker” (except in the

phrases “agency worker” and “home

worker”) means an individual who has entered into or works under (or, where the employment has ceased, worked

under)—

(a) a contract of employment; or (b) any other contract, whether express

or implied and (if it is express) whether oral or in writing, whereby the individual

undertakes to do or perform personally any work or services for another party to

the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual; and any reference to a worker's contract

shall be construed accordingly.

74.The definition of worker used in the National Minimum Wage Act 1998 is identical to that which is used in the Working Time Regulations 1998/1833. Accordingly, a worker will be entitled not only to the NMW but also the additional rights and benefits under those Regulations. These include:

 The right not to work above 48 hours in any 7 day period, unless the worker has signed a written waiver (reg 4);

 The right to withdraw their consent to any waiver on giving 7 days notice (reg 4);

 The right to adequate rest breaks where the pattern of work carried on by the employer would put the health and safety of a worker at risk, e.g. where the work is monotonous or

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the work-rate is predetermined (reg 8); and

 The right to annual leave pro rata as well as the right for any annual leave not to be replaced by payment in lieu (unless the employment has terminated) (reg 13).

When is an intern a

“worker?

75.Unpaid work placements in the legal profession are given a variety of labels. Some unpaid positions are described as internships, others as paralegal or legal assistant positions. But the label which is chosen is not particularly important. If a particular paralegal or intern falls within the legal definition of a worker, then the individual in question will be entitled to NMW and the other rights and benefits outlined above. Whether or not an individual is a worker will always be a question of fact, taking into account a variety of factors. There are no hard and fast rules.

76.As can be seen from s54(3) National Minimum Wage Act 1998, quoted above, one of the first points to consider is whether there is a contract of employment in existence, either express or implied. The case of Ready Mixed Concrete Ltd v. Minister of Pensions and National Insurance [1968] 2 QB 497 gives guidance in relation to whether there is a contract of employment. The judgment shows that the following factors will be relevant:

 Whether the individual agreed to provide his own work and skill in

return for a wage or other remuneration.

 Whether there was a sufficient degree of control to enable the individual fairly to be called an employee.

 Whether there were any other factors inconsistent with the existence of a contract of employment.

In the Ready Mixed case, the putative employees were a group of drivers paid mileage for transporting concrete. They provided and maintained their own vehicles and were responsible for making sure they had the appropriate licences and training. The court held that they were independent contractors and not employed by the company in question.

77.More recently there have been a number of cases where the Employment Tribunal has had to consider specifically whether a putative intern was in fact a worker. In Keri Hudson v TPG Web Publishing Ltd

12th May 2011, the Claimant was a 21 year old graduate who spent six weeks interning without pay for an online review site. She worked every day from 10am- 6pm and was responsible for a team of writers; for training and delegating tasks; collecting briefs; scheduling articles and for hiring new interns. The Tribunal held that she was a worker despite not having a written employment contract and that she was, therefore, entitled to £1,025 for five weeks’ work at NMW, plus pro rata holiday pay.

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78.Another example of a successful claim by an intern to be paid NMW, was the case of Vetta v London Dreams Motion Pictures Ltd (2008). In that case, Ms Vetta was awarded £2,000 for unpaid wages and accrued holiday pay for a period of around two months working full-time as an intern for a self-employed production designer engaged by a production company on an “expenses-only basis.” The Employment Tribunal found that she was a worker and was therefore entitled to the NMW from the production company on the basis that they had paid her expenses and that it was clear that she had “carried out all of the tasks that one would have expected

of an assistant in that position and should have been paid at least NMW.” 79.Applying these principles it seems likely

that the longer-term unpaid work placements referred to in finding two above may well be unlawful. Drawing together the threads from the cases referred to above, the following table provides a guide – and it is simply a guide – to the kind of placements which might legitimately be regarded as internships and those where the individual is a worker and entitled to NMW. We would encourage employers to consider their practices against this guidance.

Condition Worker Intern

Length of time Approx 2 months plus Less than 2 months Working hours Full-time/almost full-time

Set working hours

Part-time or short hours Flexible working hours Place of work At the employer’s offices No fixed place of work Time off Required to request/notify

times when unable to attend work

No duty to notify the employer if you cannot attend work

Responsibility Managing others or responsible for training

Only responsible for own work

Not responsible for any training

Role A vital role which would usually be paid e.g. secretary

Performs extra activities, not essential to working of firm Equipment Provided with equipment Provides own equipment

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BEST PRACTICE

80.The intention of this report is not to castigate employers and recruiters trying their best to survive in the increasingly fraught legal aid sector. Rather, the point is to highlight the barriers to social mobility and diversity within the profession and to try and provide some constructive suggestions as to how the current situation might improve. With this in mind, it is worth considering examples of “best practice” in the legal aid sector. The following examples have been provided by a number of employers who we contacted during the course of our research.

Remuneration

81.In view of the findings set out earlier in this report, the first issue to consider is the remuneration of work placements. London firm Bhatt Murphy provided a particularly good example in this respect, showing that even in the current financial climate it can be possible for legal aid firms to pay individuals for undertaking work placements . Unpaid work need not be essential:

“In 2013 we took four

undergraduates for two week work placements. We paid all of our placement students in accordance with the London living wage (£8.55 per hour) and we paid travel and accommodation expenses for one of

the students who lives outside of

London. Students are mentored by one of the firm’s solicitors for the duration of their placement and are

given a programme of work which we hope will give them a reasonable

insight into the work of the firm and the reality of being a solicitor. We

try to ensure the placement is challenging and to take into account the interests of individual students.”

(Diane Fisher, Bhatt Murphy)

82.Similarly, Stephenson’s LLP (a firm with a number of offices in London and the north of England), offered paid work experience in the summer months as a way of “talent spotting” potential trainees. Candidates are paid the national minimum wage:

“We have the normal expectations that come with being paid but we are

not looking to take advantage of those on a placement. We would expect interns to observe standard

office hours but have no particular expectation beyond that. If we ask people to work beyond 9-5 we would generally pay them for that.”

(Janine Turner, Stephensons LLP)

83.For the Public Law Project (PLP), a small but highly respected legal charity based in London, paying everyone who assisted with their legal work was simply not an option. But to alleviate the impact of this they explained how they focussed instead on providing a quality placement, covering all reasonable expenses so that the individual did not lose out and – most

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importantly – giving equal preference to those who could only afford to volunteer for shorter periods:

“In an ideal world we would be able to pay everyone that works for us, but for a small charity like PLP, that has unfortunately not been possible.

We are keenly aware that our volunteers are giving their time for

free, and we do our best to make their experience fulfilling, so that a placement is mutually rewarding. To this end, we pay travel expenses and

lunch costs, and we only ask that our volunteers commit to a m

Social mobility & diversity in the legal aid sector: